What is the Point of Crofting Law? Agriculture? Housing? Something Else?
This is the ninth of 11 posts ( it was to be 12 but two were amalgamated) serialising my chapter on crofting law which appeared in “Land Reform in Scotland” edited by Malcolm Combe, Jayne Glass and Annie Tindley and published by Edinburgh University Press in 2020.
The first 6 posts charted the development of crofting law from 1886-2019.
The last 5 posts discuss the challenges to crofting law. This week we discuss conflicting justifications for and priorities of crofting law.
Section II: challenges for the crofting system
(3) The Conflicting Priorities of the Crofting System
It is self-evident that to enjoy any success whatsoever, and to allow any perceived success to be measured, crofting legislation must have a clear purpose, and must be fulfilling that purpose. The justification for bestowing special rights upon a small group of people has changed over the course of history, and currently is rather confused. This confusion is causing, or at least exacerbating, some of the systemic difficulties experienced over recent years. The 1886 Act was passed to address some historical wrongs, and to protect what were essentially peasant farmers against landlords who, for various reasons, could not or did not wish to continue to relate to their tenantry as they previously had. At its heart, the 1886 Act was designed to improve the desperate standard of living amongst those in the Crofting Counties at the time.
The Shucksmith Report contains a helpful analysis[i] of the differing policy objectives which crofting law has been used to promote over the years. Shucksmith agreed that in 1886 the priority was to improve the standard of living amongst crofters. The report goes on to say that the Great Depression of the 1930s, and specifically the lack of employment in industrial centres, caused many to return to the Crofting Counties, and from 1939 the focus was on economic development to provide employment for this increasing population, to allow them to supplement their crofting income. In the post-war period, food shortages caused a change in focus towards agricultural production, and the Taylor Committee’s remit was to facilitate greater agricultural production in the Highlands and Islands.[ii] The 1955 and 1961 Acts were therefore designed with agricultural production in mind, and over the next two decades there was much amalgamation of crofting units as crofters attempted to form viable agricultural units. The new Crofting Commission was given the objective of reviving agriculture along with what the Shucksmith Report calls ‘a tortuous burden of administration and regulation’.[iii] There was at this time no regional economic development agency, illustrating that the move towards agriculture was also a move away from economic development.
The pendulum swung back in 1965, when the Highlands and Islands Development Board (HIDB, the predecessor of Highlands and Islands Enterprise (HIE)) was established. The objective of the HIDB was to promote economic development in the Highlands and Islands, and this objective was to be enhanced by the rights to acquire their crofts which crofters were given by the 1976 Act. The theory behind that, Shucksmith notes, was that to obtain the loans necessary for diversification, crofters required to own their land. The argument ‘has raged ever since between those who argue that this is necessary to allow crofters to diversify their enterprises and those who see this as creating a free market in crofts which will lead to the demise of crofting.’[iv]
It is now common knowledge (not to mention settled law) that in order to obtain commercial loans on croft land, the land must be both decrofted (removed from the scope of the crofting acts) and purchased by the crofter. The decrofting element invariably requires planning permission[v] to be obtained before an application will be seriously considered. The consequences are that (1) only diversified uses which require planning permission are assisted by the 1976 rights, thus a myriad of uses which do not require planning permission cannot be facilitated by way of acquiring the landlord’s interest in a croft; and (2) land is not merely purchased by the crofter but also removed entirely from the crofting system, which in turn contributes to the conflict (explained later in this chapter) experienced by the Crofting Commission between the need to consider population retention (enhanced by a crofter successfully diversifying and thus being able to remain on their croft) and the need to consider the effect of land being removed from the crofting system (not enhanced because land is being decrofted). Although the right to purchase may have been originally justified by the need for crofters to raise finance to diversify, the reality is that the right to purchase alone does not meet this objective effectively.
An indication that economic development has, since 1965, remained king was the transfer (by administrative function) in February 2010 of the Commission’s development function to Highlands and Islands Enterprise.[vi] This is widely accepted not to have been a productive reform, and there have been calls for it to be reversed. However, despite the aforementioned transfer to HIE, the Commission still has statutory functions, in addition to (1) regulating and (2) reorganising crofting, of (3) promoting the interests of crofting and (4) keeping under review matters relating to crofting. It must be tricky for the Commission to fulfil these functions whilst not having any development function per se (nor indeed the resources relating thereto). It must also be challenging for the Commission to fulfil two objectives which, on the face of it, are in direct conflict with each other. The Commission is currently required[vii] to have regard, in the exercising of their functions, to (a) the desirability of supporting population retention, and (b) the impact of changes to the overall area of land held in crofting tenure on the sustainability of crofting.
In practical terms, this is a dilemma between, on the one hand, allowing decrofting of land to facilitate house building, and on the other hand, protecting crofting land and retaining it as such, rather than as development land.[viii] It has often been suggested that common grazings land can and should be used for building, but the qualities which make land attractive for development are the same qualities which make for good agricultural land; good drainage, reasonably flat topography and good access to roads and services. Doubtless, many areas of common grazing land could be developed, but there will be a cost to that, and if there is a choice then the more financially attractive route will be followed. The current conflict between the Commission’s objectives are therefore reflective of the long-standing historical conflict between prioritising agricultural use on the one hand, or economic development on the other hand.
If the historical conflict between agricultural use versus diversification and economic development has led us to the current impasse, then perhaps history can also teach us the value of balance and compromise. It is not necessary for the crofting system to be solely focussed on either of those objectives, to the exclusion of the other, but if both objectives are to be fulfilled, then the legal and funding frameworks need to change, and must change in ways which complement each other. It is possible to put a croft to either agricultural use or a diversified use (currently described as ‘another purposeful use’.)[ix] However, the only crofting-specific land use funding which is available is for agricultural use. The Crofting Counties Agricultural Grant Scheme (CCAGS) is valued by crofters, yet not fully utilised, and its future is under threat as a result. There is currently no crofting-specific funding for diversified uses.
The Shucksmith Commission noted that between 1982 and 2007, on holdings of less than 30 ha in the Crofting Counties, the area of cropped land fell by 49%, the area planted for oats fell by 83%, barley by 46%, the area planted for potatoes fell by 79%, and stock feeding crops by 51%. On the other hand, the land being used for grazing increased by 47%, and for mowing by 24%.[x] The Report goes on to explain that ‘the agricultural trends described…have been driven by changes in agricultural subsidies and grants, fluctuating exchange rates and a fall in prices.’[xi] If the support system and the legal framework complemented each other more effectively than they do at present, and were both designed to fulfil a specific set of non-contradictory objectives, the crofting system could arguably offer greatly enhanced benefits to both crofters and also the wider community.
[i] Final Report of the Committee of Enquiry on Crofting, p. 14.
Hunter, J (1991) The Claim of Crofting – The Scottish Highlands and Islands 1930-1990, Mainstream Publishing, Edinburgh
[ii] Report of the Commission of Inquiry into Crofting Conditions, chapter 1 p. 7.
[iii] Final Report of the Committee of Enquiry on Crofting, p. 14 paragraph 2.1.3
[iv] Ibid. p. 15 paragraph 2.1.4.
[v] Town and Country Planning (Scotland) Act 1997 and the Planning etc (Scotland) Act 2006. See also McMaster, R, A. Prior and J. Watchman, (2013) Scottish Planning Law, Haywards Heath: Bloomsbury Professional.
[vi] The transfer was underpinned by s.2 of the Crofting Reform (Scotland) Act 2010, which repealed the old s.1(2), and replaced it with a new s.1(2).
[vii] 1993 Act s.1(2A)(a).
[viii] See King, N. (2017), ‘MacGillivray v Crofting Commission - were the 2010 changes to the decrofting process necessary?’ Juridical Review 2017 pp. 107-112, for comparison of pre and post 2010 provisions.
[ix] 1993 Act s.5C(2)(a)(ii) for tenant crofters and s.19C(2)(c)(ii) for owner-occupier crofters.
[x] Final Report of the Committee of Enquiry on Crofting, p. 31 paragraph 3.1.4.
[xi] Ibid. p. 33 paragraph 3.2.1.
The next post examines the “impossibility of purchase”.
See note below for details of all (now) 11 posts.
As always, if you need help or wish to discuss crofting law, do get in touch.
Eilidh
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Note Referred To:-
Introduction
Development of Crofting Law
1886-1911
1911-1955
1955-1976
1976-1993
1993-1997 & 1997-2019
Challenges
Crofting legislation
Crofting law v land reform
The Conflicting Priorities of the Crofting System
The Impossibility of Purchase
Conclusion